United States District Court, D. South Carolina, Orangeburg Division
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO REMAND
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
a common law negligence action based upon Plaintiff Lucretia
Smith's (Smith) alleged fall at a local Bi-Lo grocery
store. The Court's jurisdiction over this matter is
contested; however, Defendants Bi-Lo, LLC (Bi-Lo),
Southeastern Grocers, Inc. (Southeastern), and Atlantic
West-Bamberg, LLC (AWB) (collectively, Defendants) suggest
the Court has jurisdiction under 28 U.S.C. § 1332(a)(1).
before the Court is Smith's motion to remand this action
to the Bamberg County Court of Common Pleas (motion). Having
carefully considered the motion, the notice of removal, the
responses, the record, and the applicable law, it is the
judgment of the Court the motion will be denied.
FACTUAL AND PROCEDURAL HISTORY
October 21, 2015, Smith visited a Bi-Lo store located at 3386
Railroad Avenue, Bamberg, South Carolina 29003 (the Store).
As Smith entered the Store, she allegedly tripped on the
corner of a rug causing her to fall. Smith claims several
significant injuries as a result of her fall.
eventually brought suit against Defendants and an
unidentified Bi-Lo store manager-referred to in Smith's
complaint as John Doe-in the Bamberg County Court of Common
Pleas. According to the record, (1) Smith is a resident of
South Carolina, (2) Bi-Lo is a Delaware LLC that operated the
Store, (3) Southeastern is a Delaware corporation-with its
principal place of business in Florida, making it a citizen
of both states-that owns Bi-Lo, See 28 U.S.C. §
1332(c)(1) (stating a corporation is a citizen of both the
state in which it is incorporated and the state that is its
principal place of business) (4) AWB is a South Carolina
corporation, who owns the property and the building where the
Store is located, and (5) John Doe is a resident of South
Wiggly Carolina Company, Inc. (Piggly Wiggly) originally
leased the Store from AWB through a September 16, 2002, Lease
Agreement (the Lease Agreement), which the Court will discuss
below. Thereafter, Piggly Wiggly assigned its rights and
responsibilities under the Lease Agreement to Bi-Lo through a
November 11, 2013, Lease Assignment and Assumption Agreement
(the Lease Assignment), which the Court will also analyze
Smith filed this action, Defendants removed it to this Court.
Smith then filed a motion to remand, and Defendants filed
their responses. The Court, having been fully briefed on the
relevant issues, is prepared to adjudicate the motion.
STANDARD OF REVIEW
courts have original jurisdiction over two types of cases:
federal questions under 28 U.S.C. § 1331, and diversity
actions under 28 U.S.C. § 1332. Neither party alleges
the existence of a federal question, so if this case is
removable at all, it must be under the diversity statute.
Complete diversity jurisdiction exists when the “matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between . . .
citizens of different States.” 28 U.S.C. §
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant . . . to the district court of
the United States for the district and division embracing the
place where such action is pending.” Id.
§ 1441(a). But, “[a] civil action otherwise
removable solely on the basis of the jurisdiction under
section 1332(a) . . . may not be removed if any of the
parties in interest properly joined and served as defendants
is a citizen of the State in which such action is
brought.” Id. § 1441(b)(2).
case such as this, “[t]he burden of establishing
federal jurisdiction is placed upon the party seeking
removal.” Mulcahey v. Columbia Organic Chems.
Co., 29 F.3d 148, 151 (4th Cir. 1994). “From the
beginning of the diversity jurisdiction, the rule in actions
commenced by plaintiffs in federal court has been that the
citizenship of the parties at the time of commencement of the
action determines whether the requisite diversity
exists.” Rowland v. Patterson, 882 F.2d 97, 98
(4th Cir. 1989).
Court is “obliged to construe removal jurisdiction
strictly because of the ‘significant federalism
concerns' implicated.” Dixon v. Coburg Dairy,
Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc)
(quoting Mulcahey, 29 F.3d at 151).
“Therefore, ‘[i]f federal jurisdiction is
doubtful, a remand [to state court] is necessary.'”
Id. (quoting Mulcahey, 29 F.3d at 151).
Moreover, when considering a motion to remand, the Court
accepts as true all relevant allegations contained in the
complaint and construes all factual ambiguities in favor of
the plaintiff. Willy v. Coastal Corp., 855 F.2d
1160, 1163-64 (5th Cir. 1988).
DISCUSSION AND ANALYSIS
Court noted above, it has diversity jurisdiction in those
cases in which the “matter in controversy exceeds the
sum or value of $75, 000, exclusive of interest and costs,
and is between . . . citizens of different States.” 28
U.S.C. § 1332(a)(1). There is no dispute with regards to
whether the amount in controversy requirement is satisfied
here. Whether the complete diversity of citizenship mandate
is met is the basis of the disagreement before the Court.
recap, Smith is a citizen of South Carolina; Bi-Lo is a
citizen of Delaware; Southeastern is a citizen of both
Delaware and Florida; AWB is a citizen of South Carolina; and
John Doe is a citizen of South Carolina. Consequently, if the
Court were to look solely at the parties' citizenship, it
would conclude there is no diversity jurisdiction, inasmuch
as the plaintiff, Smith, and two of the defendants, John Doe
and AWB, are citizens of South Carolina.
briefly to John Doe, Defendants contend his citizenship
should be disregarded when deciding the diversity
jurisdiction question because of his fictious name. Smith
fails to counter Defendants' argument. Regardless,
Section 1441(b)(1) provides “the citizenship of
defendants sued under fictious names shall be
disregarded.” Therefore, because John Doe was sued
under a fictious name, his citizenship-for purposes of
determining whether removal is proper-will not be considered.
primary dispute here is Defendants' claim in their notice
of removal that Smith fraudulently joined AWB to defeat
diversity jurisdiction. Smith argues in her motion, however,
that she did not. As such, she claims there is not complete
diversity between the parties, thereby requiring this case be
joinder occurs when a removing party demonstrates either,
“outright fraud in the plaintiff's pleading of
jurisdictional facts, ” or “there is no
possibility that the plaintiff would be able to establish a
cause of action against the in-state defendant in state
court.” Marshall v. Manville Sales Corp., 6
F.3d 229, 232 (4th Cir. 1993) (quoting B., Inc. v. Miller
Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).
Defendants do not allege outright fraud in the jurisdictional
pleadings, so if fraudulent joinder exists, it must be
because there is no possibility of recovery against AWB.
burden on the defendant claiming fraudulent joinder is heavy;
the defendant must show that the plaintiff cannot establish a
claim against the nondiverse defendant even after resolving
all issues of fact and law in the plaintiff's
favor.” Marshall F.3d 229 at 232-33 (citing
Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th
Cir.1992). A claim need not ultimately succeed to defeat
removal; only a possibility of a right to relief need be
asserted. 14A Charles A. Wright et al., Federal Practice
& Procedure § 3723, at 353-54 (1985).
makes four primary arguments in her motion in opposition to
Defendants' fraudulent joinder argument. The Court will
now address each in turn.
Whether the terms of any agreement between the Defendants are
unknown, invalid, or otherwise subject to factual
argues the terms of any agreement between AWB and Bi-Lo are
unknown, invalid, or are subject to dispute. This argument
has several subparts.
Smith emphasizes AWB and Piggly Wiggly entered into the Lease
Agreement, not AWB and Bi-Lo, and thus the Lease Agreement
does not control Defendants' responsibilities with
respect to the Store, nor does it provide ...